Bangladesh and Burma: the Rohingya crisis Contents

6Safe and durable solutions and voluntary returns

World Humanitarian Summit Communique: We commit to focus more on reconciliation between and among communities in conflict, and to support the emergence of safe, dignified, and durable solutions for refugees and internally displaced persons, while recognising that voluntary return to the places of origin under stable conditions is the overarching goal.

The UK’s five point plan

110.Some witnesses believed the Rohingya crisis is a test case for whether the international community had learned the lessons presented by crises in Rwanda, Bosnia, and Sudan. For example, Protection Approaches wrote that:

The UK government must work to uphold an international rules-based system, including but not limited to the 2005 outcome document on the Responsibility to Protect but also the UK’s commitment to the principle of ‘never again’.186

111.The UK Government has begun to focus on a ‘5-point plan’ around which it is seeking to galvanise the international community:

112.However, David Mepham of Human Rights Watch said:

We regret that the British Government have not been more assertive and effective in pushing this agenda forward. There may be various reasons for that, but thinking back to previous human rights and humanitarian crises, Britain would have had the countries lined up and there would have been more oomph and more direction and more push behind an international settlement. This seems a bit ragged and there does not seem to be the kind of focus that is warranted, given the severity of what is going on.187

Whatever the causes, it seems accurate to observe that there is little evidence of much progress towards the sort of conditions that would allow any of the five elements to be ticked off with any confidence.

Ending the violence in Rakhine

113.We heard that violence was continuing in Rakhine daily, Tun Khin said:

Every day, Rohingya houses are being burned down by Rakhine mobs. One guy from Buthidaung Township told me, when I called him, he saw many Rakhine mobbers getting out of the military camps, and they go to Rohingya villages and they just burn Rohingya houses. They lit fires and they looted Rohingyas of everything—motorcycles, what have you.188

Human Rights Watch has access to satellite surveillance that shows fires are still active in villages in Northern Rakhine.189 And the flow of refugees into Bangladesh continues. We were told that between 1,200 and 1,800 children were arriving per week over the border. Dr Champa Patel, from Chatham House, told us that in the four days, from 9 to 13 November, 4,000 people crossed the land border.190

114.The Minister told us:

So, the violence is still going on; it is at a lower level. It is not, sadly, just being carried out by the military, but by ethnic Rakhine communities, who are armed and have been armed by the military. So, although the violence has lessened it has not completely stopped.191

As mentioned in Chapter 2 the Burmese Military has carried out an internal review which it has exonerated itself of any wrong doing. The Burmese Ambassador has also written to us to say that there had been no armed clashes since 5 September 2017 and the security forces are simply maintaining law and order.192 Human Rights Watch satellite imagery show that of the 354 villages which had been partially or completely destroyed since army “clearance operations” began on 25 August at least 118 of those villages were damaged after 5 September.193

115.We welcome the requirement by the UK of the cessation of violence in Rakhine State as one of the precursors of any attempt to return the Rohingya from the relative safety of Bangladesh; in line with the principles enshrined in the World Humanitarian Summit Communique. We applaud and encourage attempts by the UK and the international community to achieve that goal. However, we are unsure how a meaningful dialogue with the Burmese military and security administration is possible when it denies so brazenly that it was responsible for any aggression in the first place. Pursuing a parallel dialogue with, what might be termed, the civilian side of Burma’s government seems worthwhile but unlikely ultimately to be effective as it does not have the whip-hand on this issue.

Access to Rakhine for humanitarian aid

116.One of the reasons for many of the Rohingya fleeing to Bangladesh, apart from the violence, has been reported as a lack of food and basic services, such as healthcare, in northern Rakhine. Rakhine State’s poverty rate is 78%, almost double the Burmese national rate of 37.5%.194 ActionAid wrote that an estimated 100,000 Rohingya people remain stranded, internally displaced or on the move in northern Rakhine.195 The IRC stated that the barriers and restrictions on humanitarian access have left thousands without life-saving services and supplies. The UN on a visit in October described the scale of human suffering as “unimaginable”.196 Action Against Hunger have projected that with just a 3-month cessation of their activities since mid-August 11,800 children with acute malnutrition and 1,700 pregnant and lactating women would not have received necessary treatment. In addition, 13,250 anticipated beneficiaries reached through their longer-term livelihood, good security and WASH interventions were not receiving the planned support. They predict that without access to the services illness and deaths among undernourished children and women would increase as they become increasingly susceptible to disease and due to their limited access to medical services.197 Save the Children report that first-hand testimony from those most recently fleeing Rakhine give their motivation as fear in the face of direct threats of violence and attack. The Rohingya in communities left behind are unable to access markets or tend to crops, resulting in rapidly escalating humanitarian needs.198

117.The Minister told us that: “We still are determined to insist upon unfettered humanitarian access to northern Rakhine, and there is some evidence that that is improving, though it is not fully there at the moment.”199 DFID has told us that, at the Asia-Europe Foreign Ministers Meeting on 20-21 November, the Minister for Asia and the Pacific stressed the need for humanitarian access with Aung San Su Kyi’s Chief of Staff and Burma’s Deputy Foreign Minister. The British Ambassador has also met numerous times with Burmese ministers to press the authorities to end the violence and ensure full humanitarian access.200 However, at the time of writing, there was no sign of any relaxation of Burma’s stance.

Return of refugees

118.We questioned the NGOs on whether people wanted to go back. IRC’s Daphne Jayasinghe said that about 11% of respondents in their multi-sector assessment said they would want to return. 89% questioned either wanted to stay where they were currently settled, or move to other sites in Bangladesh.201 Matthew Saltmarsh from UNHCR said the UN had assembled similar figures.202 However the Minister asserted “They want to. All the evidence we have is that people talk about going back and want to go back.”203 Even though the Minister acknowledged that “there is no suggestion that there is an early or quick return of people to Rakhine. It would be foolish to say otherwise. If people are to return, they have to feel they are going to be secure and safe. It is not just a question of physically returning them. At this stage, it would be unwise for families to return.”204 We can only assume that DFID’s evidence is about ultimate aspirations and the NGOs are talking about what the Rohingyas are saying about that the current circumstances.

119.Amnesty International has, recently reported205 following an in-depth study and analysis that the Burmese treatment of the Rohingya in Rakhine State amounted to apartheid, defined as a crime against humanity under the Convention against Apartheid and the Rome Statue of the International Criminal Court. It describes a ghetto like existence where Rohingya struggle to access healthcare, education or in some areas even to leave their villages saying “This system appears designed to make Rohingyas’ lives as hopeless and humiliating as possible.” It therefore questions how Rohingya could be repatriated legally there:

There can be no safe or dignified returns of Rohingya to Myanmar while a system of apartheid remains in the country, and thousands are held there in conditions that amount to concentration camps. Returns in the current climate are simply unthinkable.206

120.The Bangladesh Deputy High Commissioner told us he was hoping for an early return for the refugees and that Bangladesh was trying to talk to the Burmese Government to assess the potential timescales for a return.207 We asked for assurances that no one would be forced to return and possibly face violence before the situation could be stabilised but, understandably, he could not give one. He told us that securing such a guarantee from Burma, “would be a big ask for Bangladesh; it is somewhere that the international community’s pressure would be extremely important.” He said:

The Rohingya basically do not have any rights in Burma. That must be addressed and that legal space must be created, and that cannot be done through a bilateral negotiation. The international community, which has in a way welcomed Myanmar back into the fold, must engage to ensure that the Rohingyas, who have been living there for thousands of years—there is recorded history of their living there for about a thousand years—are not rendered stateless now. [ … ] Unless the international community can create an environment in which the Rohingya can go back to their own country, every day it will put pressure on Bangladesh.208

121.Since we took oral evidence in November, Burma and Bangladesh have signed a memorandum of understanding on the return of refugees to Rakhine State. FCO Minister Minister Field told the House of Commons Chamber:

We understand that a joint working group will be set up within 3 weeks, with the aim of the process of returns commencing within 2 months. The UK government will press for quick progress on implementation of this bilateral agreement. But we will be clear that any returns must be safe, voluntary and dignified. And there must be appropriate international oversight.

122.No details of the memorandum have, as yet, been seen. DFID has suggested that any initiative should be led by the UN refugee agency, UNHCR209 but they have not seen the memorandum either. It is reportedly relying on a leaked copy circulating on social media. Ambassador Jonathan Allen, UK Deputy Permanent Representative to the UN told the Security Council Briefing on Burma on 12 December that:

This Council called for the UNHCR to be invited to be a full participant in the returns process. Myanmar recognises UNHCR’s expertise but so far has resisted giving them the necessary role.210

123. There is a concern about the paperwork that would be required of any Rohingya that did acquiesce to returning as many fled burning houses with nothing. The Bangladesh Deputy High Commissioner told us:

In 1978, when the Rohingyas crossed over, they had their passports, or a copy of them, because they still had those passports. In 1991 and 1992, when they crossed over, they did not have the passports because they were taken away. They were issued with identity cards. This time when they crossed over, they did not even have the identity cards because those identity cards were taken away.211

124.The Burma Human Rights Network, commenting on leaked versions of the memorandum, said that the bilateral repatriation plan was “inadequate in addressing even the most basic concerns of the displaced”, including protecting the Rohingya from further harm and discrimination and addressing their stateless status.212 Amnesty highlighted that although Burma and Bangladesh have clear obligations under international law not to return individuals to a situation in which they are at risk of persecution or other serious human rights violations, the “fact the United Nations and the international community have been completely sidelined from this process does not bode well for ensuring a robust voluntary repatriation agreement that meets international standards.”213

125.As this report was being considered in early January 2018, media reports appeared referring to the submission by Bangladesh to the Burmese government of an initial 100,000 names of Rohingya refugees for vetting with a view to an early return from Bangladesh to Burma.214 This was in the context of the work of the Joint Working Group on Refugee Returns set up between those countries in late November 2017. There was little or no information available on the criteria for selecting these names, whether they were voluntary or what administrative, legal or logistical arrangements were envisaged by either country for the return or what the eventual destination was planned to be and, crucially, what status would be provided to any returning Rohingya and whether they would be safe. This is a matter of grave concern to us.

126.There are reports that the Burmese government have begun work on a transit camp where it plans to house refugees after their return, and has earmarked land where they plan to build two more. Fortify Rights warned that these “repatriation camps” near the Bangladesh border in Maungdaw Township should not be supported by the U.N. and aid groups because “if the authorities’ treatment of more than 120,000 Rohingya confined to 38 other internment camps in other parts of Rakhine State is any indication, this latest initiative will mean indefinite confinement in squalid conditions with restricted access to critical humanitarian aid.”215

127.Burma does not have a good track record in resolving or remediating political or practical issues in relation to its internally displaced people, whether the previously displaced Rohingya, from 2012, or other populations from earlier episodes. In relation to the former:

128.Human Rights Watch reported in 2000 that the 230,000 Rohingya “refugees returned between 1993 and 1997” were “under a repatriation programme arranged through the auspices of the United Nations High Commissioner for Refugees (UNHCR).” It found that “UNHCR has had a permanent presence in Arakan state since 1994 and has assisted many Rohingya returnees, but it has limited funding and has been unable, in practice, to provide adequate protection to many of the refugees who have returned to Burma. It was also initially hampered by Burmese government restrictions on access to certain areas and constant surveillance of its projects.”219 The repatriations have been criticised as non-voluntary and a “dark chapter” in the UNHCR’s history. We asked the UNHCR representative what had happened to the refugees who had been returned in the 1990s:

Matthew Saltmarsh: During the 1990s it is true that we did assist with returns, and those were done on results of bilateral agreements between Bangladesh and Myanmar—MoUs were signed and certain conditions agreed to. Ultimately, over the course of time the Myanmar authorities did not provide a state solution—citizenship—to all of those returnees, and hence that was one of the fundamental conditions for the return that was in fact not ultimately adhered to.

Mrs Pauline Latham: [ … ] Was there any monitoring of what happened to them—whether they are still there, or whether they have fled again?

Matthew Saltmarsh: In terms of specific detail, no. Some of them will presumably have been displaced again. Some of them may still be there. There is still a population there in Rakhine State, but in terms of specific monitoring, no.220

IRC said that the previous returns have been widely criticised as forced returns in violation of the principle of non-refoulement221–this scenario must not be repeated.222

129.Minister Burt said:

The lesson that has been learned from that is that there are not a couple of easy actions to take to bring people back. If you surround them with troops supportive of them and prevent attacks upon them, all you have is divided communities who live in some sort of state with each other until an opportunity comes to fight and to kill each other, so that can’t be the right answer. It has to be a longer-term answer, which is where the commission comes in and where—if at all possible—Aung San Suu Kyi, if she can lead the Burmese people in a different direction, can make a difference too.223

130.We are concerned by the emphasis on returning refugees to the Rakhine by the Bangladesh and Burmese government when the situation still seems fraught and very far from safe, dignified and durable as set out in the World Humanitarian Summit Communique. It is unacceptable to propose that the Rohingya be returned to live in Burmese-run internment camps; inevitably to be faced with further privations, potential abuses and uncertain access for outside agencies; and likely only to be displaced once again if there is further violence.

Implementation of Annan Commission

131.The Minister reassured us that:

The only thing that can change that is long-term change, which is why we all supported the Kofi Annan commission. That gave an opportunity for Burma to look at the issue and come up with some long-term answers that would deal with local pressures in Rakhine, and also with the ethnic animosity and the like. It is still, of course, part of the programme for the future, which Aung San Suu Kyi has recognised as well.224

The implementation of Kofi Annan’s commission—will take time. There is work going on each of the points. Some of them are immediate, such as the humanitarian access; some of them are longer-term. Progress is being made, but on some of the longer-term ones there is still much to be done.225

Access for the UN

132.On March 24, 2017, the UN Human Rights Council authorized a three-member Fact-Finding Mission to Burma.226 The UN Human Rights Council adopted the resolution creating the Fact-Finding Mission because it was concerned about the allegations of human rights abuses there. The Council pointed to a February 2017 report by the UN Office of the High Commissioner for Human Rights that found that crimes against the ethnic Rohingya community in northern Rakhine State “seem to have been widespread as well as systematic, indicating the very likely commission of crimes against humanity.” Aung San Suu Kyi, stated that the UN’s decision to establish the independent international inquiry was not “in keeping with what is actually happening on the ground.” Kyaw Tin, deputy minister of foreign affairs, said on June 30 in the Parliament of Burma that, “We will order Myanmar embassies not to grant any visa to UN fact-finding mission members.”

133.The Burmese government contends that the Kofi Annan Rakhine Commission makes the UN-led inquiry unnecessary, However the Rakhine Commission was mandated to look at root causes of conflict in Rakhine State not to investigate human rights abuses, nor did it address questions of justice and accountability. Additionally, the Fact-Finding Mission has a mandate to work beyond Rakhine State and address rights abuses in other parts of the country, including conflict-ridden Shan and Kachin States. Even without access to the country, the mission intends to work from abroad and produce a written report by March 2018.227

134.In addition to the non-cooperation with the Human Rights Council Independent International Fact-Finding Mission, the Burmese government has now barred the UN special rapporteur on human rights in Burma, Yanghee Lee, and withdrawn cooperation with her for the rest of her tenure. Yanghee Lee’s mandate required two visits to Burma a year, in order to report to the Human Rights Council and the UN General Assembly. Since taking up the mandate in June 2014, she had visited six times. She was due to visit in January to assess the state of human rights across Burma, including in Rakhine state but in December this was refused. Ms Lee said:

Only two weeks ago, Myanmar’s Permanent Representative informed the Human Rights Council of its continuing cooperation with the UN, referencing the relationship with my role as Special Rapporteur, now I am being told that this decision to no longer cooperate with me is based on the statement I made after I visited the country in July.

I am puzzled and disappointed by this decision by the Myanmar Government. This declaration of non-cooperation with my mandate can only be viewed as a strong indication that there must be something terribly awful happening in Rakhine, as well as in the rest of the country. The Government has repeatedly denied violations of human rights are occurring throughout Myanmar, particularly in Rakhine State. They have said that they have nothing to hide, but their lack of cooperation with my mandate and the fact-finding mission suggests otherwise.228

This is a disappointing and retrograde step. The international community should be more assertive in securing access for the UN special rapporteur on human rights in Burma.

135.We asked witnesses if there were any figures being collated on the number that have been killed – other than the Burmese military’s official number of 400 – and we were told that accurate information was not available. David Mepham of Human Rights Watch told us that:

It is very hard to get the numbers [of fatalities]. We have said thousands. We think that is the best estimate from what we have seen and what we have seen unfolding, but it is very hard to get the numbers and it is critically important that someone somewhere should make more of an effort to do that. That is part of the accountability conversation we were just having: trying to establish how many people have been killed. Men, women and children have been hacked to death and killed and raped, and we need to know that. We need to know who was responsible and we need to have some proper accountability for that.

136.Tun Khin of the Burmese Rohingya Organisation UK told us:

In another few villages in Buthidaung, for instance Maungdaw village, they slaughtered hundreds of Rohingya. That is what the villagers told me, and some people had seen that with their own eyes. In Godam village in Buthidaung, hundreds of people were slaughtered—shot dead and killed—even children. From those few villages, we count more than a thousand. It is very hard to verify how many people have been killed, but it is quite a lot, I should say, and that is what I heard from the Rohingya refugees.

So far it seems to be have been left to organisations such as Human Rights Watch, and Fortify Rights, to gather the evidence of crimes. However, the problem is that this material cannot necessarily be used eventually to secure convictions due to issues such as guarantees given of victim anonymity and required evidential standards. Fortify Rights has been on the border since August gathering accounts from eyewitnesses and survivors. It believes that death tolls are much higher than public estimates indicate. 229 As referred to in our introduction, on 14 December 2017, MSF reported from its surveys of refugees in Bangladesh that approximately 9,000 Rohingya had died and of those, 6,700 had been killed between 25 August and 24 September. 730 of these were children:

Among the dead children below the age of five, MSF said more than 59% were reportedly shot, 15% burnt to death, 7% beaten to death and 2% killed by landmine blasts. 230 MSF Medical Director Sidney Wong said:

What we uncovered was staggering, both in terms of the numbers of people who reported a family member died as a result of violence, and the horrific ways in which they said they were killed or severely injured.

The numbers of deaths are likely to be an underestimation as we have not surveyed all refugee settlements in Bangladesh and because the surveys don’t account for the families who never made it out of Myanmar.231

137.Minister Burt himself is the UK’s international commissioner on the International Commission on Missing Persons, he explained:

That is the group that did so much extraordinary work in relation to Srebrenica, to identify the victims. By identifying the victims and how they were killed, it was able to say who killed them, which has led to the verdict today, so it really matters. How to do it is just as important as a symbolic gesture to get something on the way.232

The International Commission on Missing Persons does not currently work in Burma or Bangladesh.233

138.There needs to be an official body to assess and collate all of the evidence of crimes against humanity which NGOs and other visitors to the region can submit. We recommend that Minister Burt, as the UK’s international commissioner on the International Commission on Missing Persons, should involve the Commission in collecting evidence in Northern Rakhine for future criminal convictions.

Role of Aung San Sui Kyi

139.There has been widespread disappointment and confusion over Aung San Sui Kyi’s response or lack of response to the violence against the Rohingya. Tun Khin, President of the Burmese Rohingya Organisation UK said:

When we talk about Aung San Suu Kyi, she is totally complicit. As a Rohingya, we supported her for many years. I and our organisation campaigned for her release in this building many times. She is not speaking up, and it is not just that she is not speaking up; she is totally denying what is happening against Rohingya. We have seen Amnesty International’s strong report, Human Rights Watch’s report and a UN report mentioned what amounts to crimes against humanity. Her office has denied it: fake rape, fake news, continuously going on.234

140.Minister Field told the Foreign Affairs Committee:

The international community as a whole wanted to see Burma coming away from the decades of military dictatorship, with Aung San Suu Kyi regarded as a leader rather like, as I say, Nelson Mandela and Martin Luther King: someone, in the international community’s view, of unimpeachable ethics who alone would be able to lead this.235

He explained that in his meetings with her that:

She was pretty dismissive of the whole idea that there was any ethnic cleansing going on. [ … ] There was a sense of denial at that stage. My own view, from diplomatic telegrams from our ambassador there, and from conversations the Foreign Secretary has had with Aung San Suu Kyi, is that she has moved away from that hard-line position that she expressed to me on 27 September.236

Minister Burt told us:

We have made representations to her to say that her response needs to make clear what view she takes of the situation. She has made a couple of speeches. Her second speech confirmed the importance of the Kofi Annan commission. It set up the internal union commission to deal with some of the issues that have been raised, and she has called for the return of the Rohingya people to Burma.

But I think there has been some disappointment that that voice has not been stronger and more determined. We would all have liked to have seen it. We would all have liked to have seen the language of condemnation and recognition of the abuses that have taken place. It has not been as strong as the international community or the British Government would have liked—I will be very clear about that.237

141.Mark Farmaner Burma Campaign UK believed that she was the one person with the power to change the rhetoric on the Rohingya:

In the country, she has so much love and support from people and she is not as hindered by the nationalism as people say. She won that landslide election victory even when Buddhist nationalists were saying, “Do not vote for her.” The biggest tragedy here is she is probably the one person in the country who really could start to change the culture and attitudes towards the Rohingya and she has chosen not to do that. She has chosen to take the opposite path and, in fact, her Government recently have been whipping up more hatred and tension via their social media posts and state media.238

He also thought the fear of a military coup if she did speak out about the violence against the Rohingya was being over-played:

The idea of this military coup threat is talked up a lot. It is a very convenient excuse for her party the international community to hide behind as an excuse for doing nothing. [ … ] The military designed the current political system and it has worked very well for them. They have had sanctions lifted, they have international acceptance, and they have been receiving training from Governments all over the world. Their budget went up by roughly $100 million a year during the reforms under Thein Sein.239

We questioned the Minister on this who said:

all our evidence suggests that the population thoroughly approve of what the military have done. They have taken advantage of the situation, labelling the Rohingya community as they do to demonstrate to the Burmese people what they have done on their behalf. If they were to start to portray a popular political leader as an enemy of the people and an enemy of the military, who knows what may happen?240

142.The Minister was of the same opinion as Mark Farmaner, Burma Campaign UK, on the role of Aung San Sui Kyi as the one person who did have the power to make change:

someone has got to take Burma forward, and if Aung San Suu Kyi is clear about the role of the Rohingya people in Burma in the future and can lead that, that is important, and it is important to make a comment about it 241

Our colleagues on the Foreign Affairs Committee also concluded that the UK was left with limited options and that Aung San Sui Kyi “remains far better than the alternatives and appears to be the only hope of improvement, but she is now a compromised one.”242

186 Protection Approaches (DBB014)

187 Q11

188188 Q6

190 Q7

191 Q86

192 Letter to the Chair from HE Kyaw Zwar Minn, Ambassador of the Republic of the Union of Myanmar, dated 22 November 2017. (DBB017)

194 Towards a Peaceful, Fair and Prosperous Future for the People of Rakhine, Final report of the Rakhine Advisory Commission August 2017

195 ActionAid UK (DBB08),para 8

197 Action Against Hunger (DBB012) para 35-36

198 Save the Children (DBB030)

199 Q86

201 International Rescue Committee (DBB019),para 3

202 Q32

203 Q86

204 Q86

207 Q59

208 Q68

210 Statement by Ambassador Jonathan Allen, UK Deputy Permanent Representative to the UN, at the Security Council Briefing on Burma, Today’s conditions in the Rakhine state do not yet allow for the safe, voluntary, and dignified return of refugees to their homes, 11 December 2017

211 Q73

215 Fortify Rights (DBB03) para 23

216 Burma Campaign UK (DBB07)

220 Q33-36

221 Refoulment: the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution

222 International Rescue Committee (DBB019)

223 Q87

224 Q80

225 Q86

226 The mission is headed by Indonesian human rights expert Marzuki Darusman, and includes Sri Lankan human rights lawyer and former UN Special Representative of the Secretary-General for Children and Armed Conflict Radhika Coomaraswamy, and Australian human rights lawyer Christopher Sidoti.

227 UN Office of the High Commissioner for Human Rights UN Fact-Finding Mission on Myanmar

228 UN Office of the High Commissioner for Human Rights “Myanmar refuses access to UN Special Rapporteur”, 20 December 2017

229 Fortify Rights (DBB03) para 10

231 BBC report

232 Q89

233 International Commission on Missing Persons, Where we work

234 Q17

235 FAC, Oral Evidence, Violence in Rakhine State, 25 October 2017, HC 435, Q 87

236 FAC, Oral Evidence, Violence in Rakhine State, 25 October 2017, HC 435,

237 Q82

238 Q25

239 Q9

240 Q83

241 Q83

242 First Report of the Foreign Affairs Committee, Violence in Rakhine State and the UK’s response, HC 435, para 28

15 January 2018